TCC Protocol – new opportunity or new danger?

Valentine’s Day 2017 was the three month anniversary of the new Protocol for the Technology & Construction Court coming into force. Whilst not everyone else will have marked this event, the question should now be asked: does this new Protocol represent an improvement over its predecessor?

The latest iteration essentially seeks to introduce proportionality to TCC pre-proceedings. The single largest change is that compliance with the new Protocol is no longer mandatory. The parties can consent to ignore it. One might think what is the use of such a Protocol?

If followed, the Protocol no longer requires a full pre-action articulation of the dispute. It was not uncommon under the old Protocol for the letter of claim and response to be the longest documents in a case. Now one need only give an outline of the claim/defence.

Accordingly, henceforth it will only be in exceptional circumstances that the Court will impose costs sanctions for non-compliance with the Protocol.

Further, a new concept has been introduced called the Protocol Referee procedure. This again is not obligatory but, if agreed to, then a party can apply for a Referee to make determinations concerning the Protocol. This is not the same as having a mediation or settlement meeting (which are still part of the process) or an early neutral evaluation but supposedly gives an extra element to the Protocol system that is designed to assist the parties. It is unclear to what extent it will really assist the parties to achieve anything substantive though.

Overall the aim to reduce costs and complexity at an early stage is plainly a sound and welcome one. Nevertheless, at first blush there could appear to be a lack of conviction and therefore cohesion to this new regime with its weakened status. It is, however, likely that an established way of using this Protocol and/or commencing TCC claims will emerge and that it will vindicate the new Protocol by simplifying many claims and thereby disposing of them earlier.

I am less optimistic, however, that it will do anything to alter the current course (and cost) of the more significant disputes. It is possibly for that reason that the new Protocol allows the parties not to follow it and the recent changes to the TCC Guide itself could help with those claims.

Perhaps we can reserve judgment so that we can revisit this subject next Valentine’s Day?